Congratulations to Robert Tsai on ‘Eloquence and Reason: Creating a First Amendment Culture’

This is coming more than a little late, as the book has been out for a few months, but I wanted belatedly to congratulate my Washington College of Law colleague, Robert Tsai, on his book Eloquence and Reason: Creating a First Amendment Culture. I have it on my shelf for night reading, but unfortunately even my “free reading” time has been swept up in other things. However, I note that it just received an enthusiastic review from Kevin Kosar in the Weekly Standard, October 26, 2009 (maybe sub reqd.). Kosar’s review notes (along with some criticisms of the book):

Tsai, a professor at the American University law school, depicts how the Court has transformed the nature of the First Amendment by pouring new meanings into its words. In a mere century, the Court has made stunning alterations to the freedoms of speech, assembly, and religious exercise, and transmogrified the Amendment’s prohibition against making a law ‘respecting an establishment of religion’.

Tsai argues that the Court has been able to pull off this feat by employing stirring rhetoric and powerful metaphors. Thus, over the past century, it has likened the act of speaking in a public place (in Justice Holmes’s words) to falsely shouting Fire! in a crowded theater, to lawful assembly in the grand tradition of democracy, and to the peddling of wares in a ‘marketplace of ideas’. When one metaphor ceases to provide the desired results, the Court crafts a new one….

Inevitably, as Tsai shows, metaphors fail. Speech may be like fire, but it is not fire; it is speech. When people have wised up to this, the Court has concocted a new metaphor and eased an old one from the scene. And as it has repeated this rhetorical switcheroo, the Court’s decisions have grown increasingly estranged from the plain language of the First Amendment and the Constitution generally. The word ‘speech’ no longer means talking; it now includes actions, such as burning the American flag and peddling pornography via the Internet. Taking all this in, the average American might well wonder if the justices are making things up as they go.

Tsai has written a fine book, but I cannot help but think that the late Justice Stanley Reed got it right in his dissent inMcCollum v. Board of Education (1948): “A rule of law should not be drawn from a figure of speech.”